Compensation for wrongful conviction & imprisonment

In some circumstances, a person who has had their conviction quashed or set aside by the court can apply for compensation for the time that they have spent in prison as a result of that wrongful conviction.

About compensation for wrongful conviction & imprisonment

There's no legal right to compensation for wrongful conviction and imprisonment. However, the Government in its discretion can compensate someone wrongfully convicted and imprisoned by making an ex gratia payment. Compensation under the following scheme is only payable to people who:

are imprisoned following a wrongful conviction that is subsequently set aside

are, at a minimum, innocent on the balance of probabilities.

Guidelines

Cabinet has established guidelines for deciding whether or not someone receives compensation for wrongful conviction and imprisonment and how much compensation they receive. The guidelines require claimants to:

be alive at the time of application

have served all or part of a sentence of imprisonment

have received a free pardon or have had their convictions quashed on appeal without order of retrial.

Investigation and determination of claims

The Ministry of Justice initially assesses each claim. Claims meriting further assessment are referred by the Minister of Justice to a Queen’s Counsel for advice. The Queen’s Counsel then reports to the Minister on the merits of the claim. If the Queen’s Counsel is satisfied that the applicant is innocent on the balance of probabilities, the Queen’s Counsel will recommend an appropriate amount of compensation in line with the guidelines. Cabinet makes the final decision on the recommendation of the Minister.

Claims outside guidelines

In making the guidelines, Cabinet reserved the discretion to pay compensation to an applicant who was not eligible, in extraordinary circumstances where it is in the interests of justice.

Non-eligible claimants include people who have had their convictions quashed or set aside under the following circumstances:

where a retrial is ordered by an appeal court but the trial does not proceed

where a retrial is ordered by an appeal court and the person is acquitted at the retrial

where the conviction is quashed on a rehearing in the District Court.

Investigation and determination of claims outside guidelines

Cabinet prescribed no additional criteria or process for consideration of claims falling outside the Cabinet guidelines. However, current practice is to ensure that, where relevant, important principles in the Cabinet guidelines are applied in a consistent manner to such claims.

Claimants outside guidelines must show, at a minimum, that they are innocent on the balance of probabilities. They must also show that there are extraordinary circumstances that justify compensation.

Unlike claims inside the Cabinet guidelines, there is no requirement that the claim be considered by a Queen’s Counsel. The Ministry of Justice may, however, seek a Queen’s Counsel’s assistance in relation to any or all aspects of a claim.

Types of compensation

There is no requirement to apply the Cabinet guidelines relating to calculation of compensation. However, an approach is usually adopted that is generally consistent with the guidelines.

Process for determining eligibility and quantum of compensation

How to apply

Who can apply for compensation?

If you believe you've been wrongfully convicted and imprisoned, you can apply to the Minister of Justice for compensation.

You can make an application yourself or someone, such as a lawyer, can apply on your behalf. A lawyer can advise you on the merits of making an application and, if you go ahead, can also help you collect relevant information and prepare your submissions.

What information do I need to provide?

You’ll need to provide information about your convictions and imprisonment, and how your convictions were quashed or set aside.

At a minimum, you'll need to explain why you are innocent of the charges and state what evidence you rely on to show your innocence. The onus is on you to establish your innocence, at a minimum, to the balance of probabilities.

If your claim is outside the Cabinet guidelines, you'll also need to explain why you think there are extraordinary circumstances in your case justifying compensation. This is a high standard to meet.

Where to send your application

Send your application, including any supporting documents and submissions, to the Office of the Minister of Justice at: